The ghost of a dead law

What really allows you to live on a piece of land and call it your home? What if someone withdraws that right? Does the state have a right to confiscate your property without any proper reasons? Questions like these have been settled and people across the world widely agree that the right to life and a home are inalienable rights. That is why nation states codify them in a constitution and implement through legislation. But what happens when a law does not adhere to those basic principles?
The laws relating to “vested” property has existed for a long time in Bangladesh, even though its rationale and compatibility with constitutional principles have come under serious questions. The law, called the Vested Property Act, allowed the Government to confiscate properties from citizens who are considered enemy of the state. Originally drafted and passed under the title “Enemy Property Act”, the legislation was renamed after Bangladesh's liberation in 1971. “But this law should not have been continued after the emergency ended in 1969,” says Advocate Tushar Kanti Roy. The law was finally repealed during the Awami League government tenure in 2001, and the Vested Properties Return Act (2001) was implemented. But the restoration process has been troublesome for the affected people.
Roy, a Supreme Court advocate, has recently published a book compiling all the Vested Property Laws. He took the initiative after Justice Mirza Hossain Haider mentioned the need for all the relevant laws collected in one place. Roy was the filing lawyer for the case, working under his senior M Qumrul Haque Siddique.
The original law was enacted during an emergency, when war broke out between India and Pakistan in 1965. Following the proclamation of emergency, the President of Pakistan also promulgated an Ordinance titled “Defence of Pakistan Ordinance, 1965”. Section 3 of the Ordinance empowered the Central Government to make rules to reduce ‘Constitutional’ and ‘civil’ rights of the people. “Particularly section 3(2)(IV) empowered the Central Government to make rules to prevent anything “likely to assist the Enemy or to prejudice successful conduct of War.” In exercise of that power, the Central Government framed rules under 'The Defence of Pakistan Rules'. Through these legislation, the concept of “enemy property” originated in our legal and socio-economic system,” Roy said.

A stagnant step in the right direction

Even though the law was repealed, the struggles of its victims continue. The primary battle that affected people have been fighting is that of trying to restore the properties that were listed under the Act as vested properties. After the 2001 legislation and subsequent amendments, government published official gazette with two lists, comprising of properties that are to be returned. In 2013, however, one of the lists was canceled that had about 1.2 million properties. This means that those properties can not be reclaimed and restored to their original and rightful owners.
In a recent judgment, the author-judge urged the government to not harass citizens using a law that “died long about 37 years before”, as Roy cited in the preface of his book. The judge also resented the fact that the government continues to ignore court judgments on vested property cases, saying that the government should “instruct at least the vested property cell so that no other citizen should be harassed in the name of law which is already dead”.
“Affected people continue to file applications to the tribunals that have been set up to adjudicate the process of restoration. For many, filing an application to the tribunal for release is a fresh start to a long legal battle that had been going on for about 47 years. Nobody knows when this fresh battle will come to an end,” Roy said.
The beneficiaries, as always, are the powerful who gain from the ineffective implementation of the law. “Abul Barkat sir's book is a great resource and you can see there who are benefiting from this,” said Roy. Professor Abul Barkat's book, Inquiry into Causes and Consequences of Deprivation of Hindu Minorities in Bangladesh through the Vested Property Act (2000), found that the total amount of lands lost by Hindu households as a result of this Act amounts to 1.64 million acres, which is 53 per cent of the total land owned by the Hindu community in the country. Professor Barkat's findings also revealed that among the people benefiting directly from the appropriated properties, 44.2 percent was affiliated with the Awami League, 31.7 percent with the BNP, 5.8 percent with Jatiya Party, 4.8 percent with Jamaat-e-Islami and 13.5 percent was affiliated with other.